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May|June 2005

CANON FODDER

My colleague Judge Alex Kozinski, whose reasoning is usually trenchantly on target, has misfired in his broadside against the Canons of Judicial Ethics ("The Appearance of Propriety," January|February). He argues that the concern with the "appearance of impropriety . . . overlook[s] the most common and important ethical issues that judges face," and that these hidden and lurking ethical issues are sufficiently grave to make the canons tangential as guidelines. His approach, in essence, is as follows: Because a law clerk might draft the opinion in your case, you shouldn't worry if the judge's sister is the lawyer for the other side. My response: Don't shoot the canons!

The canons were adopted in 1924, in response to the conflict presented by Judge Kenesaw Mountain Landis's serving both as a federal judge and as the commissioner of baseball as he attempted to clean up the so-called Black Sox baseball betting scandal. The guiding principles of the canons—integrity, impartiality, and avoidance of the appearance of impropriety—serve as daily reminders of the public trust placed in judges. The canons sensitize us to the public's expectations of the judiciary. The canons are not just for the benefit of judges, but for the judged and the public at large.

Of course, actual ethical behavior is important, but so is the appearance of ethical behavior. To understand why, consider the judicial practice of donning black robes. A judge's trying a case while sporting a "Hang 'em high," or "Save the Whales," or "SpongeBob SquarePants" shirt is unthinkable, not because the T-shirts necessarily reflect an actual bias but because of the appearance of such a bias. By reining in practices most likely to undercut confidence in the judiciary, the canons serve a valuable purpose. They inspire trust in a branch of government that derives its authority primarily from such trust. And confidence in the judiciary's integrity also underlies judicial independence: decision-making by a respected neutral is the essential function of a court. All of the foundations of judging—respect for the text of the law and precedent—reinforce the message of impartiality.

Judge Kozinski makes what is essentially a debater's point by juxtaposing a difficult and important quandary (upholding a conviction on flimsy evidence) against a more minor violation (presiding in a case in which the judge owns a few shares of stock). That the first kind of violation brings to bear judicial judgment while the second involves application of a bright line is not grounds for ditching the canons.

As Justice Anthony Kennedy wrote, "Disputes arousing deep passions often come to the courtroom, and justice may appear imperfect. . . . This we cannot change. We can, however, enforce society's legitimate expectation that judges maintain, in fact and appearance, the conviction and discipline to resolve those disputes with detachment and impartiality."

Although the appearance-of-impropriety rule may seem objectionable to Kozinski, it is not trivial to public confidence in the judiciary—just witness the public outcry in recent cases involving stock ownership, unsolicited gifts, and free trips. Kozinski's solution to this dilemma is "to trust the judges" and operate with fewer rules. Our system does function in large part on public trust and credibility. But that trust should not be blind, and accepting accountability through rules of judicial ethics is a small price to pay for the honor and responsibility of serving as a judge.

Judge M. Margaret McKeown
Ninth Circuit Court of Appeals, Member U.S. Judicial Conference Codes of Conduct Committee, Member ABA Commission on Revision of the Model Judicial Code

SWEET REASON

I commend Professor Richard Epstein for shining the light of economic reason on the debate over the place of big pharmaceutical companies in medicine ("Pharma Furor," January|February). As in all industries, competition breeds innovation when it comes to pharmaceuticals. Were there not six different cholesterol-lowering statins on the market, there would be little incentive for the various manufacturers to conduct additional research to determine further biologic properties and potential uses. This research has revealed that these medications may also be effective in preventing or treating a host of other chronic diseases, including osteoporosis and Alzheimer's.

Professor Epstein only scratches the surface of the social benefits of having multiple medications available within the same pharmacological class. The idiosyncratic nature of patients' responses to medications is well documented, both clinically and empirically. Look in almost any medicine cabinet, and you will likely find multiple brands of anti-inflammatory medications. While Mom swears by her Motrin, Dad gets relief only from his Advil, and the kids find that only Bayer aspirin does the job. We are only beginning to unravel the genetic underpinnings of these biologic quirks, but their reality is undeniable.

Dr. Ken Baum
New Haven, Conn.

AMISH FLAWS

Thank you for publishing your investigation into sexual abuse among the Amish ("The Gentle People," January|February). It's important for the American public to learn of what's going on behind closed doors within so many Amish communities and families. Amish criminals—particularly the rapists, pedophiles, and abusers your article highlighted—need to be treated just as non-Amish criminals are treated. My hope is that our judicial system will stop ignoring the atrocities committed within that group.

I'm a 24-year-old woman who left the Amish when I was 15. I am now fortunate enough to be attending Columbia University, and after college I plan to work to make a better life possible for people still oppressed within the Amish community.

Torah K. Bontrager
New York, N.Y.

As a reader living in the heart of Amish Country, I was impressed with the detail of your recent story about Amish incest and glad to see the severity of the issue fully captured in Nadya Labi's article. Here in Ohio, there are many people outside of the Amish Church who resent the sort of special treatment that the Amish are afforded and that Labi reported on. The Amish help drive this area economically, and it's no secret that legal authorities will too often allow the church to police itself, out of fear that the Amish would leave the area if laws were more rigidly applied to them. The result puts children in danger—and evidence of the problem isn't hidden from view. I've watched young boys, caught in busy highway traffic, struggle to control teams of horses that would challenge any grown men. On those same highways I've seen babies dangled on fast driving tractors. These observations don't begin to compare with the horror of the incest that your piece detailed, but they demonstrate a larger point: When communities like mine begin to accept lawlessness, horrible things can happen. Your article confirms that.

Doris Wilson
Millersburg, Ohio

I, ROBOT

I found Benjamin Soskis's feature ("Man and the Machines," January|February) to be a very interesting introduction to a subject that, as a computer scientist, I admit I haven't given much thought to until reading your article. As a culture we've seen the science-fiction versions of robotics and have often been treated to Hollywood's take on artificial intelligence with the belief that none of the fanciful advances we see would likely occur in our lifetime. But the science-fiction treatment of these topics shouldn't keep us from having real discussions about the way the law might treat robots.

Soskis's article made me consider the ways in which we might interpret or add to the laws of robotics that Isaac Asimov explored in "Three Laws of Robotics." In general, Asimov suggested that robots never be allowed to harm human beings or, through inaction, allow a human being to come to harm; that robots follow instructions from humans; and that robots protect themselves without violating the first two rules. After considering Soskis's article, I'd suggest that a fourth law be added to the discussion: Robots must never attempt to exercise any legal rights on their own behalf.

James C. Buff
Plano, Tex.

CORRECTION

In the March | April issue in which the winners of the second annual Legal Affairs Writing Contest for Law Students were announced, the name of Miriam H. Klaiman was misspelled. Klaiman is a student at the James E. Rogers College of Law at the University of Arizona and earned third place for her article, "Will All of Him Be at the Funeral?"

Letters to the editor should include your name, address, and telephone number and can be sent to [email protected] or Legal Affairs, 254 Elm Street, New Haven, CT 06511. We are unable to publish all letters and may edit letters for length and clarity.

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